Legal Bulletin No. 49
This bulletin was issued on 19 June 2020
Issued 19 June 2020
The complete Arbitral and Medical Appeal Panel decisions summarised below are now available on the Commission’s website. The complete appeal decisions and judicial review decisions summarised below are available on AustLII, Jade and LexisNexis.
Court of Appeal decision
Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW  NSWCA 113
Worker’s Compensation; assessment and amount of compensation; discontinuation of payments; construction of Workers Compensation Act 1987, section 39; whether appellants were entitled to payments during the period between discontinuation and resumption of payments following assessment by an approved medical specialist.
Decision date: 17 June 2020 | Before: White JA, Brereton JA and Simpson AJA
Consequential condition; whether the worker suffered a consequential condition of her right shoulder from favouring her injured left shoulder; consideration of competing medical evidence; adequacy of reasons
Decision date: 9 June 2020 | Member: Acting Deputy President Geoffrey Parker SC
Claims for lump sum compensation in respect of frank left shoulder injury and nature and conditions injury; whether condition in right shoulder resulted from accepted frank injury to left shoulder; whether factual evidence supports medical opinion; Held – condition in the worker’s right shoulder resulted from compensatory overuse due to the left shoulder injury; both shoulders referred to AMS for assessment of degree of permanent impairment; agreement reached between the parties for the referral of the nature and conditions injury to an AMS.
Decision date: 4 June 2020 | Member: Arbitrator Rachel Homan
Hearing loss; whether worker suffered workplace injury against background of serious pre-existing hearing loss; whether need for hearing aids as a result of injury; Held - worker suffered an injury by way of noise-induced hearing loss as evidence by the deterioration in hearing across relevant ranges between an audiogram carried out in 2006 and those conducted from 2017 onwards; Kooragang Cement Pty Ltd v Bates discussed; the requirement for hearing aids resulted from the workplace injury, noting multiple factors can cause a need for surgery; Murphy v Allity Management Services Pty Ltd, State of New South Wales v Butler , Diab v NRMA applied.
Decision date: 9 June 2020 | Member: Arbitrator Cameron Burge
Consequential condition; worker injured both legs requiring surgery on one and the wearing of a cam boot on the other; worker continued to work and developed back pain but did not report it for five years; Murphy v Allity applied; lower back injury a consequential condition; Held – worker suffered injuries to her right and left lower extremities; worker adopted an altered gait, which caused the onset of a consequential condition in her lumbar spine.
Decision date: 9 June 2020 | Member: Arbitrator John Wynyard
Claim for proposed gastric bypass surgery; respondent disputed whether the proposed surgery was reasonably necessary treatment due to weight gain sustained as sequelae of agreed right knee injury and whether this type of treatment is reasonably necessary as opposed to diet, exercise and medication; consequential lumbar condition also disputed; Held - worker sustained a lumbar condition, psychological symptoms and weight gain as a consequence of the right knee injury; proposed surgery was reasonably necessary treatment.
Decision date: 10 June 2020 | Member: Senior Arbitrator Josephine Bamber
Worker made allegations that psychological condition caused by bullying and harassment by the principal and assaults by students; respondent submitted that worker’s evidence should not be accepted and opinion of doctors not based on a fair climate; Held - Worker exaggerated her evidence and her history treated with a degree of caution; however contemporaneous and uncontradicted evidence established that worker perceived she was bullied over the imposition of a number of return to work plans; medical practitioners recorded a fair climate for the expression of opinion; worker established that employment was main contributing factor to the aggravation of her psychological condition.
Decision date: 10 June 2020 | Member: Arbitrator John Harris
Claim for lump sum compensation for WPI as a result of condition in the right wrist consequent upon undisputed injury to the left wrist; Kooragang Cement v Bates “common sense” evaluation of the evidence undertaken to determine the issue; detailed examination of the medical evidence; finding that the condition in the applicant’s right wrist consequent upon the undisputed injury to the left wrist; matter referred to AMS for assessment of WPI as a result of injury to the left wrist and condition in the right wrist consequent upon that injury; matter not suitable for assessment by AMS via video.
Decision date: 10 June 2020 | Member: Arbitrator Brett Batchelor
Mayman v Poppy’s Pies Pty Limited and Workers Compensation Nominal Insurer Insurance and Care NSW – icare)  NSWWCC 194
Accepted injury to the left shoulder; whether the worker suffered an injury to her cervical spine; pre-existing pathology in the cervical spine as a result of an assault; the value of contemporaneous evidence; absence of contemporaneous complaints of increased cervical spine symptoms post work-related injury; Davis v Council of the City of Wagga Wagga, King v Collins, Mastronardi v State of New South Wales, Onassis and Calogeropoulos v Vergottis, Department of Aging, Disability and Home Care v Findlay, Department of Education and Training v Ireland, Nguyen v Cosmopolitan Home; Kooragang Cement Pty Ltd v Bate, Paric v John Holland (Constructions) Pty Ltd, Makita (Australia) Pty Ltd v Sprowles, Hancock v East Coast Timbers Products Pty Ltd considered and applied; Held - the worker did not suffer injury to cervical spine arising out of or in the course of her employment with the first respondent within the meaning of sections 4(a) and 9A of the 1987 Act; referral of left shoulder for assessment by an AMS.
Decision date: 10 June 2020 | Member: Arbitrator Anthony Scarcella
Roberts v Secretary, Department of Communities and Justice (Department of Corrective Service)  NSWWCC 195
Material contribution; worker underwent meniscectomy in 1984; worked as merchant seaman until 1990; injured same knee when assaulted in course of employment as juvenile detention warder; onus satisfied to show material contribution; Murphy v Allity applied; Held - award for worker for TKR.
Decision date: 10 June 2020 | Member: Arbitrator John Wynyard
Medical Appeal decisions
AMS deducted three-fifths from assessment of 20% WPI due to supervening osteoarthritis and chondrocalcinosis with respect to right knee injury in 2002; appeal based on failure to give sufficient reasons for deduction; Held - AMS had not considered whether the supervening conditions broke the chain of causation; Department of Education v Johnson considered; error established; the impairment assessed by the AMS at examination was appropriate but subject injury was substantial contributing factor and no deduction warranted for supervening conditions; on the evidence there would have been a pre-existing condition in 2002 which contributed to the overall impairment and one-tenth deducted pursuant to section 323; MAC revoked.
Decision date: 4 June 2020 | Panel Members: Arbitrator William Dalley, Dr David Crocker and Dr Drew Dixon | Body system: right lower extremity
Section 323 of 1998 Act; alleged erroneous application of section 323(2); failure to give reasons why it was “difficult or costly” to assess the contribution of symptomatic pre-existing condition; failure to consider contribution of pre-existing condition made to impairment; Held – the appellant had not proven that the AMS applied section 323(2) or applied an incorrect test of causation in applying section 323(1); Vannini v Worldwide Demolitions considered; MAC confirmed
Decision date: 9 June 2020 | Panel Members: Arbitrator Paul Sweeney, Dr John Ashwell and Dr Mark Burns | Body system: lumbar spine
Appellant appealed against the AMS’s assessment that the respondent worker had achieved maximum medical improvement and that her permanent impairment from psychiatric injury was fully ascertainable; appellant contended that evidence revealed there had been a recent significant deterioration in the respondent’s condition and there had not been sufficient time to ascertain whether medication she commenced one week prior to the AMS’s examination would improve the respondent’s condition; Held - Appeal Panel rejected appellant’s submissions; MAC confirmed.
Decision date: 10 June 2020 | Panel Members: Arbitrator Marshal Douglas, Dr Michael Hong and Professor Nicholas Glozier | Body system: psychological
Psychological injury; appeal from assessment of psychiatric impairment; whether the AMS fell into error in applying a deduction pursuant to section 323 of the 1998 Act; paragraph 11.10 of the Guidelines discussed; Pereira v Siemens Ltd and Broadspectrum v Wills considered; Held - AMS did not adopt the methodology set out in paragraph 11.1 of the Guidelines amounting to demonstrable error; assessment also made on the basis of incorrect criteria; MAC revoked.
Decision date: 10 June 2020 | Panel Members: Arbitrator Carolyn Rimmer, Dr Patrick Morris and Dr Julian Parmegiani | Body system: psychological